Curate postpones cleft palate late abortion action

Joanna Jepson challenged the police's failure to investigate

By Elizabeth Day

12:01AM BST 09 May 2004

Joanna Jepson, the Church of England curate who mounted a legal challenge to the late abortion of a foetus with a cleft lip and palate, has agreed to a police request to postpone her High Court action.

The decision has frustrated Pro-Life and disability charities who say the failure to press ahead with the review will leave doctors free to carry out "eugenic practices" and perform late abortions on foetuses with slight impairments.

The termination in question was performed on a 28-week-old foetus with a bilateral cleft lip and palate.

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The procedure was carried out by Dr Michael Cohn at Hereford County Hospital in December 2001 - four weeks after the legal limit for abortion of a foetus without "serious handicap".

Miss Jepson, who was born with a congenital jaw defect and has a brother with Down's syndrome, won permission from the High Court last December to challenge West Mercia Police's failure to investigate the late abortion.

She said yesterday: "I have had to agree to this because there is case law to say that the judicial review could not go ahead while an investigation is in process. At this stage, we feel it is necessary to co-operate. It is frustrating, but I hope this way means the issue is not going to be fudged by another investigation.

"It is my undying hope that the police not only take into account the surviving individuals involved in the case, but also the one whose life was taken away."

She initially called for a police inquiry in September 2002. West Mercia did not take action at that stage, but decided to re-open the case in April after the announcement of the judicial review.

The investigation into Dr Cohn is expected to be completed in July. A West Mercia Police spokesman confirmed that they had asked for a stay of the review so that it would not prejudice the inquiry.

Although the review is provisionally expected to go ahead in September, concern is growing that it could collapse if police decide to press charges against Dr Cohn.

This could mean that the definition of a "severe handicap", as outlined in the 1967 Abortion Act, will be left unclarified and subject to interpretation by individual doctors and parents.

A legal analyst involved with the judicial process said: "The major part of the evidence put forward in support of a review was the fact that West Mercia had failed to investigate a potentially criminal act. If that is no longer the case by September, it could be an insurmountable obstacle."

Julia Millington, the political director of the anti-abortion Pro-Life Alliance, said such an outcome would be "very disappointing".

"There are bigger issues at stake than this individual case, specifically concerning late abortions for disability. We take the view that this is a eugenic practice and we want the review to continue as soon as possible. We would ask the court to clarify the legal definition of 'serious handicap'. We hope the court will be able to hear the evidence regardless of the result of the criminal investigation."

While Miss Jepson welcomed the police decision to re-investigate, she was concerned that the delay could allow the wider issue to be sidelined.

"This case has highlighted a grave injustice against babies deemed unfit to live because of an impairment," she said. "We therefore look forward to the judicial review as this is essential to a wider redress of this discrimination in our society."